DEGREE OF DECEPTION: SOUTH FLORIDA NURSES
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Citing
Merck misconduct, jurors find for plaintiff in Vioxx
retrial
An Idaho man who alleged that Vioxx caused his 2001 heart
attack has prevailed against its manufacturer, Merck &
Co., Inc., after he lost his first trial and was granted a
new one based on evidence that Merck had withheld safety
data. (Humeston v. Merck, No. ATL-L-2272-03 (N.J. Super.
Mar. 12, 2007).)
Frederick Humeston’s first trial ended in a defense verdict
in November 2005. But after new evidence came to light that
Merck had misrepresented the heart attack risk linked to
Vioxx, New Jersey Superior Court Judge Carol Higbee vacated
that verdict in August 2006.
Higbee is overseeing all the Vioxx cases filed in her state
against Merck, based in Whitehouse Station, New Jersey.
In March, jurors awarded Humeston and his wife $20 million
in compensatory damages and $27.5 million in punitive
damages, voting 8-0 that Merck’s actions “were an extreme
deviation from reasonable standards of conduct,” according
to the jury verdict form. They determined that Merck failed
to warn physicians about the increased risk of heart
attacks; that the company intentionally suppressed,
concealed, or omitted risk information from physicians and
consumers; that Humeston’s doctor would have altered his
prescribing decision if he had been adequately warned; and
that Vioxx was a substantial contributing factor in
Humeston’s heart attack.
Christopher Seeger, a New York City lawyer representing
Humeston, said the fact that jurors awarded higher punitive
than compensatory damages shows that they believed Merck
needed to be punished. “This jury found by clear and
convincing evidence that Merck’s conduct was malicious,
oppressive, and outrageous,” Seeger said.
Humeston was tried together with another case, Hermans v.
Merck. The jurors found that Merck did not fail to warn in
Brian Hermans’s case; he died after suffering a heart
attack in 2002, five months after Merck changed Vioxx’s
label.
The company changed the label after a study called VIGOR
(Vioxx Gastrointestinal Outcomes Research), which it
sponsored, revealed a statistically significant higher
incidence of serious cardiovascular thrombotic events with
Vioxx than with naproxen, another nonsteroidal
anti-inflammatory drug (NSAID). Merck withdrew Vioxx in
2004.
The Humeston and Hermans trial was conducted in two phases.
In the first, which consolidated both cases, jurors
considered what Merck knew about the risk of Vioxx, what
warnings it gave physicians, and whether those warnings
were adequate. In the second, the same jurors determined
whether Vioxx caused each plaintiff’s heart attack and
damages. The two-phase trial was designed to speed up the
cases, because several of them can be tried together on
liability and then each can proceed separately on damages,
Seeger explained.
Mark Lanier, a Houston lawyer who represents Hermans,
called the two-phase trial “a great way to move a large
block of cases, but the cases will need to be all in the
same time category to avoid the problems inherent in a case
like Hermans, where the plaintiff starts taking Vioxx
before a label change but has a heart attack after a label
change.” He added, “Those cases need individual attention
to determine if the label change made a difference.”
Although the jury found against Hermans on failure to warn,
Lanier noted that it found in both cases that Merck
violated New Jersey’s consumer fraud statute, so the
company must pay economic damages and attorney fees and
expenses.
So far, Merck has won more Vioxx cases than it has lost,
and it has vowed to fight each case in court. Two weeks
after the Humeston verdict, a jury in Madison County,
Illinois, found in the company’s favor in Schwaller v.
Merck. (No. 05L687 (Ill. Cir. Mar. 27, 2007).) Merck has
announced it will appeal the result in Humeston.
Among the information that surfaced after Humeston’s first
trial was the New England Journal of Medicine’s “expression
of concern,” published in December 2005, that the authors
of the VIGOR study withheld data, misrepresenting the risk
of heart attack from Vioxx.
Other studies have shed light on the risk of intermittent
Vioxx use. Merck initially maintained that risk increased
only after 18 months of use. (See Allison Torres Burtka,
Vioxx Studies Question Timing of Heart Attack Risk, TRIAL
98 (July 2006).)
Seeger said that because Humeston was a short-term user of
Vioxx, his case should be encouraging to other
short-term-use plaintiffs. The idea that only long-term use
is dangerous “has been corrected in the medical literature,
and juries see through it, too,” he said.
“For plaintiff lawyers, this is an example of why not to
give up,” Seeger said. He added that although Idaho has a
$250,000 cap on noneconomic damages, it doesn’t apply to
Humeston’s award because the jury found Merck’s conduct to
be willful and reckless. Idaho law also limits punitive
damages to three times compensatory damages, a cap the
award did not exceed.
“These cases add to the momentum that works to the
plaintiffs’ advantage over time,” Lanier noted. “I’ve said
repeatedly that these cases are very difficult.” He
compared them to asbestos litigation, in which defendants
won most cases for the first 5 to 10 years.
“Then the momentum shifted” in favor of plaintiffs, he
said. In the Vioxx litigation, “these wins will add to that
momentum and bring Merck’s reckoning closer.”
Maryland
high court expands economic loss exception
Owners of cars whose front seats tend to collapse backward
in rear collisions can sue manufacturers for the cost of
repairing the alleged defect, even when they have not been
injured by it, Maryland’s highest court has ruled
unanimously. (Lloyd v. Gen. Motors Corp., 2007 WL 416367
(Md. Feb. 8, 2007).)
The economic loss doctrine bars recovery for economic
damages in the absence of an injury. But the court of
appeals held that this class of owners can sue four major
automakers under an exception that allows plaintiffs to
recover economic damages if an alleged defect creates an
“unreasonable risk of death or serious injury” and the
probability of either occurring is high.
The defect in question deals with a thinly engaged,
nonelectric reclining mechanism in front seats that twists
and breaks under a driver’s weight in rear collisions at
over 30 mph, causing the seat to collapse backward. When
the seat collapses, front seat occupants slide up over the
seat or are thrown backward, injuring themselves and any
occupants in the back seat.
Across the country, attorneys have won individual suits
against the defendants—General Motors, Ford,
DaimlerChrysler, and Saturn—on behalf of plaintiffs who
either died or suffered back injuries, paraplegia, or
quadriplegia because of this alleged defect. This is the
first time, however, that any court has given a class of
owners who have not been injured the green light to sue,
attorneys for the plaintiffs in the case said.
“[I]t is exactly the risk of serious bodily injury involved
in this case that the exception to the economic loss rule
was intended to remedy,” Chief Judge Robert Bell wrote for
the court, reversing the lower courts’ decisions. Citing
both public policy and the court’s past decisions involving
the rule, Bell noted that the exception “advances the
practical goal of providing a remedy before the significant
loss of life or limb.”
“This is a landmark ruling, nationally,” said
Gaithersburg-based William Askinazi, one of three attorneys
representing the plaintiffs. “The Lloyd court said that you
don’t have to wait to be killed or seriously injured in
order to have a cause of action [for a defect] that in
other cases is likely to cause significant injury or
death,” he said.
The plaintiffs have waited seven years to reach this
point—a record in Maryland, according to Askinazi.
Stephen Ring of Germantown, Askinzi’s cocounsel, countered
the automakers’ claim that the ruling will open the
floodgates of litigation. “The key fact is that the right
to sue is particular to those situations where [the
possibility] of significant injury or death is limited to
the same defect,” Ring said.
The defendants argue that their seats were designed to
collapse and that a rigid seat would be more dangerous to
drivers and front seat passengers, particularly because it
would increase the effect of whiplash in rear collisions.
“That’s just not true. The original design did not call for
this,” Ring said, noting that some manufacturers have
corrected the alleged defect and the modification has
improved safety.
In addition to the negligence and strict liability claims
under the exception, the court granted the class standing
on six other claims: misrepresentation, fraud, fraudulent
concealment, Consumer Protection Act violations, breach of
implied warranty of merchantability, and civil conspiracy.
Ring and Askinazi said the National Highway Traffic Safety
Administration (NHTSA) has turned a blind eye to the
defendants’ failure to remedy the alleged defect. Despite
myriad complaints by consumers who have been injured when
their car’s front seat collapsed in a rear collision, and
ignoring pressure from consumer advocacy groups to update
its seat safety standard, the agency has kept in place a
standard that is “woefully inadequate,” Askinazi said.
In a January report about its New Car Assessment Program
(NCAP), NHTSA acknowledged that “consumers are concerned
about rear-impact crashes.”
“In the long term, a dynamic test that addresses those
injuries not covered by the agency’s current standards
could be investigated as a possible ratings program,”
according to the report.
Consumer advocates are not satisfied with that response.
“This is not sufficient given the severity of potential
injuries from rear-end crashes, especially fires and
seat-back failure,” said Public Citizen President Joan
Claybrook in testimony in March before NHTSA and the
Department of Transportation. She said NHTSA is moving too
slowly to institute an NCAP rating for seat-back strength
in rear-impact collisions.
“NHTSA has known, ever since fuel-integrity testing in
rear-impact crashes above 30 miles per hour revealed
widespread failure of front seat backs, that these seats
have a dangerous tendency to collapse rearward,” Claybrook
said. “NHTSA does currently have a seat-strength standard,
but it remains so pathetically inadequate that some believe
vehicle seats are held to a weaker standard than lawn
chairs.”
“This is as significant a safety issue as defective seat
belts and rollovers,” Askinazi said. “It’s the safety issue
for this decade. We are proceeding in Maryland and other
places to get this defect fixed before other people are
harmed.”